Complainant

Respondent

Parties

Bernard  Carroll

Freightspeed Transport Ltd/ Freightspeed Group

Complainant

Respondent

Anonymised Parties

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Representatives

Kevin Byrne, Solicitor,  Brannigan and Matthews

John Keenan, JRK Business Services

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00055313-003

27/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00055313-004

27/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00055313-005

27/03/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave evidence under affirmation.  Cross examination was facilitated.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

At the start of the first hearing, the complainant indicated that he was not pursuing the two claims under the Temporary Agency Work Act: CA-0005513-003 & CA-0005513-004.  The cognisant period for these complaints runs from 28 August 2022 until 27 February 2023.

In April 2022, the complainant agreed with the respondent that he would take carer’s leave for a period of up to 2 years, with an express agreement that his return to work would occur, at the latest, in April 2024.

While on his carer’s leave, the complainant corresponded with the respondent in August 2022 and sought to be facilitated with part-time hours during his period of carer’s leave. This request was refused, however at no stage was it suggested to the complainant that his agreement with the respondent to permit him to take the relevant leave was being altered or that his employment was being terminated.

The complainant continued with his period of carer’s leave.  In December 2022, he wrote to managers in the respondent’s client site raising various issues at his workplace.

The complainant submitted that the Company reacted in an aggressive and oppressive manner to the legitimate complaints raised by the complainant and wrote to him by letter dated 19 January 2023 and instead of stating that it would deal with the concerns raised by him, asserted that the complainant should not have raised the issues at all and stating that the respondent’s HR advisor would meet with the complainant.

The complainant submitted that no suggestion was made in this letter that the complainant was no longer an employee, and any assertions made in the letter are only consistent with his employment still being in existence.  It was the position of the respondent that the complainant remained its employee.

The complainant submitted that he was penalised under the Safety, Health and Welfare at Work Act, 2005 Act

The complainant submitted that Section 27(3) of the 2005 Act provides the prohibition against penalisation wherein it states, inter alia, “ An employer shall not penalise or threaten penalisation against an employee for— (a) acting in compliance with the relevant statutory provisions, (b) performing any duty or exercising any right under the relevant statutory provisions, (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, …”

The complainant submitted that Section 27(1) provides the definition of “penalisation” which

“includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.”

It was submitted that the matters of concern raised by the complainant came within the definition of penalisation provided by Section 27(3) of the Act and the manner in which the complainant has been treated by his employer, in failing and refusing to permit and to ensure his return to work, is penalisation for the purposes of Section 27(1) of the 2005 Act.

It was further submitted that the reprimanding of the complainant by letter of 19 January 2023 and the threat of disciplinary proceedings amounts to penalisation. This falls within the 6-month cognisable period.

In evidence the complainant confirmed that he wrote to the respondent’s client to complain about his work environment with the respondent and how he was being treated by one individual.  He stated that when he subsequently received a letter from his employer “he was not surprised, and he was expecting a letter from them”.  He stated that “it would make you angry having to deal with bullying like it was a 1950’s building site”.  He also stated that he felt abandoned by the respondent and that “he didn’t really know what to expect or what to make of the contact with the HR Advisor.”  Under cross examination he was asked if he wrote a grievance to his employer but confirmed that he had not made a formal grievance.  He also confirmed that he was never disciplined.  He stated that they should have defended him.

The complainant stated that he was asked to write down his grievance and he was also asked whether his employer bullied him but stated no.  He also confirmed that he did not make a complaint.  The complainant mentioned that it all felt very disciplinary in nature but confirmed that he was not the subject of a disciplinary procedure.

During clarification of matters following the start of the respondent’s witness testimony, it was put to the complainant that the complaint letter to the client does not deal with Health and Safety matters a t all.  He responded by saying “my real issues are with the ridiculous rules, its not a health and safety matter”.

The respondent denied penalising the complainant.  It also submitted that the penalisation complaint was outside of the time frame provided for in the legislation.

The General Manager gave evidence for the respondent.  He recalled having a conversation with the complainant around August 2022 noting that part-time work was not available with the respondent.  He also mentioned that the complainant was possibly claiming other forms of Social Welfare entitlements.  He confirmed that the complainant last date of employment was 18 April 2022.  Under cross examination it was put to the witness that it was supposed to be a leave of absence and that this was not dependant upon him leaving.  It was also put to the witness that the complainant never said that he wanted to resign his employment, he merely said that he wanted to explore other social welfare options.  The witness agreed that there was not agreement that it was his last days work.

The witness confirmed that the complainant did not make accusations about the company of its employees to the respondent.  He confirmed that the respondent was contacted by the client company in December 2022.  Following this, a letter was written to the complainant in January 2023.  It was put to the witness that the letter was directed to someone who was still in its employment.  The witness noted that he wouldn’t agree that the letter put the whole contract into jeopardy, but he also did not agree with the contention that the letter indicated that the complainant was still an employee.

Under redirect it was put to the witness that an issue was raised in March 2022 and following this, two colleagues visited with the complainant.  This was confirmed by the witness. IT was confirmed that the complainant wanted to take carer’s leave to look after his parents.  The witness suggested that the ending of his employment would assist the complainant in obtaining other assistance and that this was mentioned at that meeting that took place in August 2022.

The witness stated that it appeared that the complainant took up alternative employment by November 2023.  He confirmed that the complainant’s termination date of April was entered into the RPN (Revenue Commissioners database) sometime in August 2022.

The complainant submitted that he was penalised after he wrote to the respondent’s client to decry his treatment at the hands of one of their employees.  He submitted that as a response the employer wrote to him in January 2023 admonishing him and calling him into a meeting where he was threatened with disciplinary action.  Section 27 (3) of the Act states:

Section 27 (3)

An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

Although the complainant wrote to the respondent’s client to denounce bullying at the hands of one of its employees, I am not satisfied that this falls within the provisions of Section 27 (3) of the Safety, Health, and Welfare at Work Act.  Furthermore, the complainant submitted that he was threatened with disciplinary action but confirmed that no disciplinary action was taken against him.

Section 27(2) of the Act states as follows:

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

None of the above actions were taken by the employer subsequent to the complainant having written to the client.

As to the suggestion that the respondent removed the complainant from its payroll as some sort of penalisation, the facts do not support this contention.  The complainant was removed from the payroll in April 2022 following his being granted Carer’s Leave by the respondent.  This appears to have been done in August 2022 but with effect from April of that year. This predates the alleged assertions or complaints made by the complainant and subsequent penalisation under under the Act.

Arising from the foregoing, I find that the complainant has not established that he was penalised under the Act and I find that the complaint is not well founded.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is not well founded.

Health, Safety and Welfare at Work Act – penalisation – not well founded